mischievous as during the first ten years of its power, or so
respectable as it has lately been. Everybody who knows anything of its
early history knows, that, during a considerable time, it was the terror
of Bengal, the scourge of the native population, the screen of European
delinquents, a convenient tool of the Government for all purposes of
evil, an insurmountable obstacle to the Government in all undertakings
for the public good; that its proceedings were made up of pedantry,
cruelty, and corruption; that its disputes with the Government were at
one time on the point of breaking up the whole fabric of society; and
that a convulsion was averted only by the dexterous policy of Warren
Hastings, who at last bought off the opposition of the Chief Justice for
eight thousand pounds a year. It is notorious that, while the Supreme
Court opposed Hastings in all his best measures, it was a thoroughgoing
accomplice in his worst; that it took part in the most scandalous of
those proceedings which, fifty years ago, roused the indignation of
Parliament and of the country; that it assisted in the spoliation of the
princesses of Oude; that it passed sentence of death on Nuncomar. And
this is the Court which we are to restore from its present state of
degeneracy to its original purity. This is the protection which we are
to give to the natives against the Europeans. Sir, so far is it from
being true that the character of the Supreme Court has deteriorated,
that it has, perhaps, improved more than any other institution in India.
But the evil lies deep in the nature of the institution itself. The
judges have in our time deserved the greatest respect. Their judgment
and integrity have done much to mitigate the vices of the system.
The worst charge that can be brought against any of them is that of
pertinacity, disinterested, conscientious pertinacity, in error. The
real evil is the state of the law. You have two supreme powers in India.
There is no arbitrator except a Legislature fifteen thousand miles off.
Such a system is on the face of it an absurdity in politics. My
wonder is, not that this system has several times been on the point
of producing fatal consequences to the peace and resources of
India;--those, I think, are the words in which Warren Hastings described
the effect of the contest between his Government and the Judges;--but
that it has not actually produced such consequences. The most
distinguished members of the Indian Government, the most distinguished
Judges of the Supreme Court, call upon you to reform this system. Sir
Charles Metcalfe, Sir Charles Grey, represent with equal urgency the
expediency of having one single paramount council armed with legislative
power. The admission of Europeans to India renders it absolutely
necessary not to delay our decision. The effect of that admission would
be to raise a hundred questions, to produce a hundred contests between
the Council and the judicature. The Government would be paralysed at the
precise moment at which all its energy was required. While the two equal
powers were acting in opposite directions, the whole machine of the
state would stand still. The Europeans would be uncontrolled. The
natives would be unprotected. The consequences I will not pretend to
foresee. Everything beyond is darkness and confusion.
Having given to the Government supreme legislative power, we next
propose to give to it for a time the assistance of a commission for the
purpose of digesting and reforming the laws of India, so that those laws
may, as soon as possible, be formed into a Code. Gentleman of whom I
wish to speak with the highest respect have expressed a doubt whether
India be at present in a fit state to receive a benefit which is not yet
enjoyed by this free and highly civilised country. Sir, I can allow to
this argument very little weight beyond that which it derives from the
personal authority of those who use it. For, in the first place, our
freedom and our high civilisation make this improvement, desirable as
it must always be, less indispensably necessary to us than to our Indian
subjects; and in the next place, our freedom and civilisation, I fear,
make it far more difficult for us to obtain this benefit for ourselves
than to bestow it on them.
I believe that no country ever stood so much in need of a code of laws
as India; and I believe also that there never was a country in which the
want might so easily be supplied. I said that there were many points of
analogy between the state of that country after the fall of the Mogul
power, and the state of Europe after the fall of the Roman empire. In
one respect the analogy is very striking. As there were in Europe then,
so there are in India now, several systems of law widely differing from
each other, but coexisting and coequal. The indigenous population has
its own laws. Each of the successive races of conquerors has brought
with it its own peculiar jurisprudence: the Mussulman his Koran and the
innumerable commentators on the Koran; the Englishman his Statute Book
and his Term Reports. As there were established in Italy, at one and
the same time, the Roman Law, the Lombard law, the Ripuarian law, the
Bavarian law, and the Salic law, so we have now in our Eastern empire
Hindoo law, Mahometan law, Parsee law, English law, perpetually mingling
with each other and disturbing each other, varying with the person,
varying with the place. In one and the same cause the process and
pleadings are in the fashion of one nation, the judgment is according
to the laws of another. An issue is evolved according to the rules
of Westminster, and decided according to those of Benares. The only
Mahometan book in the nature of a code is the Koran; the only Hindoo
book, the Institutes. Everybody who knows those books knows that they
provide for a very small part of the cases which must arise in every
community. All beyond them is comment and tradition. Our regulations in
civil matters do not define rights, but merely establish remedies. If
a point of Hindoo law arises, the Judge calls on the Pundit for an
opinion. If a point of Mahometan law arises, the Judge applies to the
Cauzee. What the integrity of these functionaries is, we may learn from
Sir William Jones. That eminent man declared that he could not answer
it to his conscience to decide any point of law on the faith of a Hindoo
expositor. Sir Thomas Strange confirms this declaration. Even if there
were no suspicion of corruption on the part of the interpreters of the
law, the science which they profess is in such a state of confusion that
no reliance can be placed on their answers. Sir Francis Macnaghten tells
us, that it is a delusion to fancy that there is any known and fixed law
under which the Hindoo people live; that texts may be produced on any
side of any question; that expositors equal in authority perpetually
contradict each other: that the obsolete law is perpetually confounded
with the law actually in force; and that the first lesson to be
impressed on a functionary who has to administer Hindoo law is that it
is vain to think of extracting certainty from the books of the jurist.
The consequence is that in practice the decisions of the tribunals are
altogether arbitrary. What is administered is not law, but a kind of
rude and capricious equity. I asked an able and excellent judge lately
returned from India how one of our Zillah Courts would decide
several legal questions of great importance, questions not involving
considerations of religion or of caste, mere questions of commercial
law. He told me that it was a mere lottery. He knew how he should
himself decide them. But he knew nothing more. I asked a most
distinguished civil servant of the Company, with reference to the clause
in this Bill on the subject of slavery, whether at present, if a dancing
girl ran away from her master, the judge would force her to go back.
"Some judges," he said, "send a girl back. Others set her at liberty.
The whole is a mere matter of chance. Everything depends on the temper
of the individual judge."
Even in this country we have had complaints of judge-made law; even in
this country, where the standard of morality is higher than in almost
any other part of the world; where, during several generations, not
one depositary of our legal traditions has incurred the suspicion of
personal corruption; where there are popular institutions; where every
decision is watched by a shrewd and learned audience; where there is an
intelligent and observant public; where every remarkable case is fully
reported in a hundred newspapers; where, in short, there is everything
which can mitigate the evils of such a system. But judge-made law, where
there is an absolute government and a lax morality, where there is no
bar and no public, is a curse and a scandal not to be endured. It is
time that the magistrate should know what law he is to administer, that
the subject should know under what law he is to live. We do not mean
that all the people of India should live under the same law: far from
it: there is not a word in the bill, there was not a word in my right
honourable friend's speech, susceptible of such an interpretation.
We know how desirable that object is; but we also know that it is
unattainable. We know that respect must be paid to feelings generated by
differences of religion, of nation, and of caste. Much, I am persuaded,
may be done to assimilate the different systems of law without wounding
those feelings. But, whether we assimilate those systems or not, let us
ascertain them; let us digest them. We propose no rash innovation; we
wish to give no shock to the prejudices of any part of our subjects. Our
principle is simply this; uniformity where you can have it: diversity
where you must have it; but in all cases certainty.
As I believe that India stands more in need of a code than any other
country in the world, I believe also that there is no country on which
that great benefit can more easily be conferred. A code is almost the
only blessing, perhaps is the only blessing, which absolute governments
are better fitted to confer on a nation than popular governments.
The work of digesting a vast and artificial system of unwritten
jurisprudence is far more easily performed, and far better performed, by
few minds than by many, by a Napoleon than by a Chamber of Deputies and
a Chamber of Peers, by a government like that of Prussia or Denmark
than by a government like that of England. A quiet knot of two or three
veteran jurists is an infinitely better machinery for such a purpose
than a large popular assembly divided, as such assemblies almost always
are, into adverse factions. This seems to me, therefore, to be precisely
that point of time at which the advantage of a complete written code of
laws may most easily be conferred on India. It is a work which cannot
be well performed in an age of barbarism, which cannot without great
difficulty be performed in an age of freedom. It is a work which
especially belongs to a government like that of India, to an enlightened
and paternal despotism.
I have detained the House so long, Sir, that I will defer what I had to
say on some parts of this measure, important parts, indeed, but far less
important, as I think, than those to which I have adverted, till we are
in Committee. There is, however, one part of the bill on which, after
what has recently passed elsewhere, I feel myself irresistibly impelled
to say a few words. I allude to that wise, that benevolent, that noble
clause which enacts that no native of our Indian empire shall, by reason
of his colour, his descent, or his religion, be incapable of holding
office. At the risk of being called by that nickname which is regarded
as the most opprobrious of all nicknames by men of selfish hearts and
contracted minds, at the risk of being called a philosopher, I must say
that, to the last day of my life, I shall be proud of having been one
of those who assisted in the framing of the bill which contains that
clause. We are told that the time can never come when the natives of
India can be admitted to high civil and military office. We are told
that this is the condition on which we hold our power. We are told that
we are bound to confer on our subjects every benefit--which they
are capable of enjoying?--no;--which it is in our power to confer
on them?--no;--but which we can confer on them without hazard to the
perpetuity of our own domination. Against that proposition I solemnly
protest as inconsistent alike with sound policy and sound morality.
I am far, very far, from wishing to proceed hastily in this most
delicate matter. I feel that, for the good of India itself, the
admission of natives to high office must be effected by slow degrees.
But that, when the fulness of time is come, when the interest of India
requires the change, we ought to refuse to make that change lest we
should endanger our own power, this is a doctrine of which I cannot
think without indignation. Governments, like men, may buy existence too
dear. "Propter vitam vivendi perdere causas," is a despicable policy
both in individuals and in states. In the present case, such a policy
would be not only despicable, but absurd. The mere extent of empire
is not necessarily an advantage. To many governments it has been
cumbersome; to some it has been fatal. It will be allowed by every
statesman of our time that the prosperity of a community is made up of
the prosperity of those who compose the community, and that it is the
most childish ambition to covet dominion which adds to no man's comfort
or security. To the great trading nation, to the great manufacturing
nation, no progress which any portion of the human race can make in
knowledge, in taste for the conveniences of life, or in the wealth by
which those conveniences are produced, can be matter of indifference.
It is scarcely possible to calculate the benefits which we might derive
from the diffusion of European civilisation among the vast population of
the East. It would be, on the most selfish view of the case, far better
for us that the people of India were well governed and independent of
us, than ill governed and subject to us; that they were ruled by their
own kings, but wearing our broadcloth, and working with our cutlery,
than that they were performing their salams to English collectors and
English magistrates, but were too ignorant to value, or too poor to buy,
English manufactures. To trade with civilised men is infinitely more
profitable than to govern savages. That would, indeed, be a doting
wisdom, which, in order that India might remain a dependency, would make
it an useless and costly dependency, which would keep a hundred millions
of men from being our customers in order that they might continue to be
our slaves.
It was, as Bernier tells us, the practice of the miserable tyrants whom
he found in India, when they dreaded the capacity and spirit of some
distinguished subject, and yet could not venture to murder him, to
administer to him a daily dose of the pousta, a preparation of opium,
the effect of which was in a few months to destroy all the bodily and
mental powers of the wretch who was drugged with it, and to turn him
into a helpless idiot. The detestable artifice, more horrible than
assassination itself, was worthy of those who employed it. It is no
model for the English nation. We shall never consent to administer the
pousta to a whole community, to stupefy and paralyse a great people whom
God has committed to our charge, for the wretched purpose of rendering
them more amenable to our control. What is power worth if it is
founded on vice, on ignorance, and on misery; if we can hold it only
by violating the most sacred duties which as governors we owe to the
governed, and which, as a people blessed with far more than an ordinary
measure of political liberty and of intellectual light, we owe to a race
debased by three thousand years of despotism and priestcraft? We are
free, we are civilised, to little purpose, if we grudge to any portion
of the human race an equal measure of freedom and civilisation.
Are we to keep the people of India ignorant in order that we may keep
them submissive? Or do we think that we can give them knowledge without
awakening ambition? Or do we mean to awaken ambition and to provide it
with no legitimate vent? Who will answer any of these questions in the
affirmative? Yet one of them must be answered in the affirmative, by
every person who maintains that we ought permanently to exclude the
natives from high office. I have no fears. The path of duty is plain
before us: and it is also the path of wisdom, of national prosperity, of
national honour.
The destinies of our Indian empire are covered with thick darkness. It
is difficult to form any conjecture as to the fate reserved for a
state which resembles no other in history, and which forms by itself
a separate class of political phenomena. The laws which regulate its
growth and its decay are still unknown to us. It may be that the public
mind of India may expand under our system till it has outgrown that
system; that by good government we may educate our subjects into a
capacity for better government; that, having become instructed in
European knowledge, they may, in some future age, demand European
institutions. Whether such a day will ever come I know not. But never
will I attempt to avert or to retard it. Whenever it comes, it will be
the proudest day in English history. To have found a great people sunk
in the lowest depths of slavery and superstition, to have so ruled
them as to have made them desirous and capable of all the privileges of
citizens, would indeed be a title to glory all our own. The sceptre may
pass away from us. Unforeseen accidents may derange our most profound
schemes of policy. Victory may be inconstant to our arms. But there are
triumphs which are followed by no reverse. There is an empire exempt
from all natural causes of decay. Those triumphs are the pacific
triumphs of reason over barbarism; that empire is the imperishable
empire of our arts and our morals, our literature and our laws.
*****
EDINBURGH ELECTION, 1839. (MAY 29, 1839) A SPEECH DELIVERED AT EDINBURGH
ON THE 29TH OF MAY 1839.
The elevation of Mr Abercromby to the peerage in May 1839, caused a
vacancy in the representation of the city of Edinburgh. A meeting of
the electors was called to consider of the manner in which the vacancy
should be supplied. At this meeting the following Speech was made.
My Lord Provost and Gentlemen,--At the request of a very large and
respectable portion of your body, I appear before you as a candidate
for a high and solemn trust, which, uninvited, I should have thought
it presumption to solicit, but which, thus invited, I should think it
cowardice to decline. If I had felt myself justified in following my own
inclinations, I am not sure that even a summons so honourable as that
which I have received would have been sufficient to draw me away from
pursuits far better suited to my taste and temper than the turmoil of
political warfare. But I feel that my lot is cast in times in which
no man is free to judge, merely according to his own taste and temper,
whether he will devote himself to active or to contemplative life; in
times in which society has a right to demand, from every one of its
members, active and strenuous exertions. I have, therefore, obeyed your
call; and I now present myself before you for the purpose of offering
to you, not, what I am sure you would reject with disdain, flattery,
degrading alike to a candidate, and to a constituent body; but such
reasonable, candid, and manly explanations as become the mouth of a free
man ambitious of the confidence of a free people.
It is hardly necessary for me to say that I stand here unconnected with
this great community. It would be mere affectation not to acknowledge
that with respect to local questions I have much to learn; but I hope
that you will find in me no sluggish or inattentive learner. From an
early age I have felt a strong interest in Edinburgh, although attached
to Edinburgh by no other ties than those which are common to me with
multitudes; that tie which attaches every man of Scottish blood to the
ancient and renowned capital of our race; that tie which attaches every
student of history to the spot ennobled by so many great and memorable
events; that tie which attaches every traveller of taste to the most
beautiful of British cities; and that tie which attaches every lover
of literature to a place which, since it has ceased to be the seat of
empire, has derived from poetry, philosophy, and eloquence a far higher
distinction than empire can bestow. If to those ties it shall now be
your pleasure to add a tie still closer and more peculiar, I can only
assure you that it shall be the study of my life so to conduct myself
in these our troubled times that you may have no reason to be ashamed of
your choice.
Those gentlemen who invited me to appear as a candidate before you were
doubtless acquainted with the part which I took in public affairs during
the three first Parliaments of the late King. Circumstances have since
that time undergone great alteration; but no alteration has taken place
in my principles. I do not mean to say that thought, discussion, and the
new phenomena produced by the operation of a new representative system,
have not led me to modify some of my views on questions of detail; but,
with respect to the fundamental principles of government, my opinions
are still what they were when, in 1831 and 1832, I took part, according
to the measure of my abilities, in that great pacific victory which
purified the representative system of England, and which first gave a
real representative system to Scotland. Even at that time, Gentlemen,
the leaning of my mind was in favour of one measure to which the
illustrious leader of the Whig party, whose name ought never to be
mentioned without gratitude and reverence in any assembly of British
electors, I mean Earl Grey, was understood to entertain strong
objections, and to which his Cabinet, as a Cabinet, was invariably
opposed. I speak of the vote by ballot. All that has passed since that
time confirms me in the view which I was then inclined to take of
that important question. At the same time I do not think that all the
advantages are on one side and all the disadvantages on the other. I
must admit that the effect of the practice of secret voting would be to
withdraw the voter from the operation of some salutary and honourable,
as well as of some pernicious and degrading motives. But seeing, as
I cannot help seeing, that the practice of intimidation, instead of
diminishing, is gaining ground, I am compelled to consider whether the
time has not arrived when we are bound to apply what seems the only
efficient remedy. And I am compelled to consider whether, in doing so,
I am not strictly following the principles of the Reform Bill to the
legitimate conclusions. For surely those who supported the Reform Bill
intended to give the people of Britain a reality, not a delusion; to
destroy nomination, and not to make an outward show of destroying it;
to bestow the franchise, and not the name of the franchise; and least of
all, to give suffering and humiliation under the name of the franchise.
If men are to be returned to Parliament, not by popular election, but
by nomination, then I say without hesitation that the ancient system was
much the best. Both systems alike sent men to Parliament who were not
freely chosen by independent constituent bodies: but under the old
system there was little or no need of intimidation, while, under the new
system, we have the misery and disgrace produced by intimidation added
to the process. If, therefore, we are to have nomination, I prefer the
nomination which used to take place at Old Sarum to the nomination which
now takes place at Newark. In both cases you have members returned at
the will of one landed proprietor: but at Newark you have two hundred
ejectments into the bargain, to say nothing of the mortification and
remorse endured by all those who, though they were not ejected, yet
voted against their consciences from fear of ejectment.